Suit by Stithorn against the Toledo, Wabash and Western Railroad Oo., for the value of a horse alleged to have been killed on the road. It is averred in the complaint, that the horse was killed by the negligence of the company. There is no allegation that the road was not fenced, and no question is made on that point, as the suit was in the Common Pleas, and was instituted before the passage of the act of 1859. There was no evidence at all, on the trial, as to how the horse was killed. It was proved that the horse was found dead by the side of the road; but whether the horse ran against the locomotive, or the locomotive against the horse, does not appear.

The judgment is reversed, with costs. Cause remanded, &c,